JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 03/11/2014 passed in Sessions Trial No. 136/2014 whereby learned Sessions Judge, Raigarh has convicted the appellant/accused for offence punishable under Section 302 and sentenced to imprisonment for life and fine of Rs. 5,000/- in default of payment of fine additional imprisonment for two years. 2. Case of the prosecution, in brief, is that on 29/03/2014, at about 09:30 AM at Village Gahnajhariya P.S. Lailunga, the appellant herein, with the intention of causing death of his wife Leelawati, assaulted her with a wooden stick on her head on account of which she suffered grievous injury and died instantaneously and he thereby, committed the aforesaid offence. 3. Further case of the prosecution, in brief, is that appellant used to quarrel with his wife deceased Leelawati on petty matters. On 29/03/2014 at about 09:30 AM, appellant brought his wife back to their home from her parental home stating that he wanted some bank related documents and thereafter, on the pretext that she does not cook food properly, he started quarreling with her and tried to assault her but she ran towards their courtyard. The appellant chased her and thereafter, near paddy straw, he inflicted single blow with wooden stick on her head due to which she suffered grievous injury and succumbed to death. On report being lodged by Dolchand Patel (PW-2), brother of deceased, for offence punishable under Section 302 of IPC vide Ex.P/2, merg intimation was registered vide Ex.P/2 and after issuing summons to the witnesses, inquest was conducted vide Ex.P/12. Spot map was prepared vide Ex.P/4 and plain soil as well as blood stained soil was seized from the spot. The dead body of deceased Leelawati was subjected to postmortem, which was conducted by Dr. Yogeshwar Singh Sartiya (PW-5) and the postmortem report has been filed as Ex.P/9 in which cause of death is intracerebral haemorrhage and nature of death is homicidal. Pursuant to memorandum statement of the appellant vide Ex.P/6, recovery of wooden stick has been made from paddy straw in the courtyard of appellant's house vide Ex.P/7 but it was not sent for chemical examination. Pursuant to memorandum statement of the appellant vide Ex.P/6, recovery of wooden stick has been made from paddy straw in the courtyard of appellant's house vide Ex.P/7 but it was not sent for chemical examination. After recording the statements of the witnesses and after due investigation, the appellant/accused was chargesheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought into record 17 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. wherein he denied guilt but examined none, however, he exhibited one document in his defence. 5. Learned trial Court, after appreciating the oral and documentary evidence on record, holding the death of deceased Leelawati to be homicidal in nature and finding the appellant guilty of the offence, proceeded to convict him for offence punishable under Section 302 of IPC. 6. Mr. Bharat Rajput, learned counsel for the appellant, would submit that there is no direct evidence available on record to connect him with the offence in question as there is no eyewitness to the incident and even the recovery of wooden stick has been made from an open place and it is not admissible in evidence under Section 27 of Indian Evidence Act, 1872 and though blood stains were found in the said wooden stick but there is no FSL report to prove it, therefore, conviction of the appellant under Section 302 of IPC is liable to be set aside. In alternative, he would submit that at the most, considering that a single blow was inflicted upon the deceased, appellant's case would be covered with Exception 4 to Section 300 of IPC and he can be convicted for offence punishable under Section 304 Part-II of IPC in view of the decision rendered by the Supreme Court in the matter of Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 . 7. Per Contra, Mr. 7. Per Contra, Mr. Arjit Tiwari, learned State counsel, would support the impugned judgment and submit that prosecution has proved the offence beyond reasonable doubt, as such, learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and it is not a case which would be covered with Exception 4 to Section 300 of IPC, therefore, the instant appeal deserves to be dismissed. He would rely upon the decision rendered by the Supreme Court in the matter of Stalin vs. State Represented by the Inspector of Police, (2020) 9 SCC 524 to buttress his submission. 8. We have heard learned counsel for the Parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection. 9. The first question would be whether the death of deceased Leelawati was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the medical opinion of Dr. Yogeshwar Singh Sartiya (PW-5) who has conducted postmortem vide Ex.9 wherein he has clearly stated that cause of death is intracerebral haemorrage as a result of trauma due to head injury and the nature of death is homicidal. Taking consideration of the entire evidence available on record as well as looking to the single injury sustained by the deceased on her head, which could have been caused by a hard blunt object and relying upon the medical opinion of Dr. Yogesh Singh Sartiya (PW-5) as well as postmortem report (Ex.P/9), we are of the considered opinion that learned trial Court has rightly held the death of deceased Leelawati to be homicidal in nature. We hereby affirm the said finding. 11. The next question for consideration would be whether the appellant is the author of the crime? 12. Learned trial Court has also recorded an affirmative finding in this regard. Dolchand Patel (PW-2), brother of deceased Leelawati, has clearly stated before the Court that appellant used to quarrel with his wife frequently on petty disputes. Prior to three days of the incident, the appellant had again quarrelled with Leelawati after which she came to his brother's house and was residing there when on 29/03/2014 at about 09:30 AM, appellant went to Dolchand's house and asked his wife Leelawati to come home with him and give him some Bank related documents. Prior to three days of the incident, the appellant had again quarrelled with Leelawati after which she came to his brother's house and was residing there when on 29/03/2014 at about 09:30 AM, appellant went to Dolchand's house and asked his wife Leelawati to come home with him and give him some Bank related documents. When appellant took Leelawati back to their house, Dolchand (PW-2) also sent his niece Mamta Patel. Dolchand (PW-2) has further stated that Mamta Patel returned after some time and told him that she suspected something and was frightened, thereafter, he went to appellant's house but he did not find anybody and thereafter, the daughter of Bodhram (PW-1), their next door neighbour, told him that appellant has murdered his wife Leelawati and has absconded. When Dolchand (PW-2) went to the courtyard, he found that his sister Leelawati was lying unconscious on the ground. Thereafter, he called ambulance and took her to hospital but she died before reaching the hospital. Despite being subjected to cross-examination, Dolchand (PW-2) has remained consistent in his version. Though daughter of Bodhram has not been examined before the Court, but Bodhram (PW-1) himself has been examined, however, he has not supported the case of the prosecution. 13. Similarly, Dileshwar Nayak (PW-3), brother-in-law of Dolchand (PW-2), has also stated that Dolchand had informed him about the incident and asked him to come to the hospital. He had seen that there was injury on the head of Leelawati as well as on her earlobe and she had already died when they reached the hospital. 14. Dr. Yogeshwar Singh Sartiya (PW-5), who has conducted postmortem of deceased, has clearly opined that there was a deep wound inflicted on the skull of the deceased of about 9” x 4” cm and the said injury has been inflicted with a hard and blunt object. Pursuant to the memorandum of the appellant vide Ex.P/6, recovery of wooden stick has been made from the courtyard (place of occurrence) and it was sent for examination, after which Dr. Yogeshwar Singh Sartiya (PW-5) has clearly stated that the injury suffered by the deceased could have been inflicted by the said wooden stick. As such, though there is no eyewitness to the incident but considering the statement of Dolchand (PW-2) and Dileshwar Nayak (PW-3) as well as considering the medical opinion of Dr. Yogeshwar Singh Sartiya (PW-5) has clearly stated that the injury suffered by the deceased could have been inflicted by the said wooden stick. As such, though there is no eyewitness to the incident but considering the statement of Dolchand (PW-2) and Dileshwar Nayak (PW-3) as well as considering the medical opinion of Dr. Yogeshwar Singh Sartiya (PW-5) and the memorandum (Ex.P/6) and seizure (Ex.P/7), we are of the considered opinion that appellant is indeed the author of the crime. 15. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 to Section 300 of IPC and as such, his conviction is liable to be altered to Section 304 Part-II of IPC as contended by learned counsel for the appellant? 16. In the matter of Sukhbir Singh vs. State of Haryana, (2002) 3 SCC 327 . Their Lordships of the Supreme Court have observed as under: “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part-I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part-I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 17. Thereafter, in the matter of Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 . Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused which state as under: “23. Thereafter, in the matter of Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 . Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused which state as under: “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under: (a) Motive or previous enmity. (b) Whether the incident had taken place on the spur of the moment. (c) The intention/knowledge of the accused while inflicting the blow or injury. (d) Whether the death ensued instantaneously or the victim died after several days. (e) The gravity, dimension and nature of injury. (f) The age and general health condition of the accused. (g) Whether the injury was caused with premeditation in a sudden fight. (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted. (i) The criminal background and adverse history of the accused. (j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock. (k) Number of other criminal cases pending against the accused. (l) Incident occurred within the family members or close relations. (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 18. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 18. Likewise, in the matter of State vs. Sanjeev Nanda, (2012) 8 SCC 450 their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part-II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 19. Further, the Supreme Court in the matter of Arjun vs. State of Chhattisgarh, (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under: “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. UT, Chandigarh, (1989) 2 SCC 217 : 1989 SCC (Cri) 348, it has been explained as under: (SCC p. 220, Para 7) “7. To invoke this exception four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam vs. State, (2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130, in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, Para 9) “9.............“18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the Parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage.” 20. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage.” 20. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC. 21. Reverting to the facts of the present case in light of the aforesaid principle of law laid down by Their Lordships of Supreme Court, it is quite vivid that deceased Leelawati had gone to her brother Dolchand's house and on the fateful day, the appellant went therein and asked the deceased to return to their house and give him some Bank related documents. When they reached home, on the pretext of not cooking food and serving it properly, dispute arose between the appellant and deceased and out of sudden anger and in heat of passion, the appellant assaulted the deceased with wooden stick and inflicted a single blow on her head by which she suffered grievous injury and succumbed to death. Although there was no premeditation on the part of the appellant and he did not have the intention to cause the death of his wife Leelawati but looking to the single injury inflicted by him on the head of the deceased, which is a vital part of the body, he must have had the knowledge that it would likely cause her death. Therefore, all the four ingredients of Exception 4 to Section 300 of IPC are satisfied and in that view of the matter, conviction of the appellant under Section 302 of IPC is altered to Section 304 Part-II of IPC and since he is in jail since 29/03/2014 i.e. for more than 8 years, he is sentenced to the period already undergone by him. The appellant be released forthwith, if not required in any other case. 22. Accordingly, this criminal appeal is allowed to the extent indicated hereinabove.